Dr. Bakare is a licensed physician in Pennsylvania and a board certified OB/GYN physician. (Doc. 113, Ex. 1 ¶ 5.) When Dr. Bakare began his private medical practice in 1986, he worked part-time at the OB/GYN clinic at Polyclinic Hospital. From 1987 through August 27, 2002,*fn2 Dr. Bakare had unrestricted staff privileges at Pinnacle Health Hospitals and/or its predecessors.*fn3 From 1987 through August 30, 2002,*fn4 Dr. Bakare also worked as a contract physician at the OB/GYN clinic of Hamilton Health Center ("Hamilton"). (Doc. 113, Ex. 1 ¶¶ 12-16.)

Since July 2001, Dr. Longenderfer has served as the President and Chief Executive Officer of Pinnacle Health System. Previously, Dr. Longenderfer was the Chief Operating Officer and Vice President of Medical Affairs for Pinnacle Health Hospitals. He is an ex-officio member of the Medical Executive Committee ("MEC") of Pinnacle Health Hospitals. (Doc. 103 ¶¶ 5-7; Doc. 113 ¶¶ 5-7.)

Dr. Kellis has served as the Senior Vice President of Medical Affairs of Pinnacle Health System since August 2001 and is a member of MEC. (Doc. 103 ¶ 8; Doc. 113 ¶ 8.)

Dr. Bronitsky, a licensed OB/GYN physician, was Chairman of Pinnacle Health Hospitals' OB/GYN Department from 2000 until October 2002, when he moved his medical practice to Arizona. (Doc. 103 ¶ 12; Doc. 113 ¶ 12.)

Dr. Moore, a physician specializing in neurosurgery, is a member of the medical staff at Pinnacle Health Hospitals and of MEC. (Doc. 103 ¶ 10; Doc. 113 ¶ 10.)

Dr. Evans, a licensed OB/GYN physician, was the Chairman of Pinnacle's Quality Assessment ("QA") Committee until he left his Pennsylvania practice in August 2001. He currently practices medicine in Sidney, Ohio. (Doc. 103 ¶ 14; Doc. 113 ¶ 14.)

B. Proposed Combination of Pinnacle and Hamilton's OB/GYN Services

On January 17, 2002, representatives from Pinnacle and Hamilton met to discuss a potential collaboration of their OB/GYN programs. The preliminary collaboration plan contemplated that Hamilton would: (1) assume control of Pinnacle's WOHC, (2) lease from Pinnacle the facilities and equipment utilized by the WOHC, and (3) contract with Pinnacle for back office support services (e.g., billing). In addition, Pinnacle would assist Hamilton with quality assurance programs. (Doc. 103 ¶ 260; Doc. 113 ¶ 260.) In February 2002, Pinnacle and Hamilton exchanged financial information and Pinnacle sent a draft lease for the WOHC facilities and equipment to Hamilton. (Doc. 103 ¶¶ 261-62; Doc. 113 ¶¶ 261-62.) Hamilton used this information to perform a financial analysis of the proposed combination. (Doc. 103 ¶ 263; Doc. 113 ¶ 263.)

Discussions regarding the proposed combination continued during the summer of 2002. Representatives of the Pinnacle and Hamilton Boards met and Hamilton officials toured the WOHC. (Doc. 103 ¶ 264; Doc. 113 ¶ 264.) Then, the first obstacle to the combination arose. Hamilton's financial advisor reported to the Hamilton Board that the combined clinic under Hamilton's control would likely operate at a loss of one million ($1,000,000.00) dollars. On August 20, 2002, Dr. Longenderfer discussed Hamilton's financial concerns, specifically this projected substantial loss, with the Pinnacle Board's executive committee. Dr. Longenderfer informed the executive committee that Pinnacle management was exploring various means of providing financial safeguards to Hamilton. (Doc. 103 ¶ 265; Doc. 113 ¶ 265.)

On September 23, 2002, Pinnacle management presented its Board with a specific proposal for the combination with Hamilton.*fn5 The proposal provided: (1) Pinnacle would subsidize Hamilton's losses, up to $1 million the first three years, up to $750,000 the fourth year, and up to $500,000 the fifth year; (2) if Hamilton could not operate without the $1 million subsidy by the fourth year, it "may require Pinnacle Health to resume its program at its previous level;" (3) Pinnacle would receive minority representation on the Hamilton Health Board of Directors; (4) Hamilton would provide 24-7 emergency room coverage at Harrisburg Hospital for medical assistance and uninsured patients who do not have an OB/GYN physician; (5) Hamilton would lease WOHC space at $148,000 per year; and (6) Pinnacle Health would assume a significant role in quality assurance. (Doc. 104, Ex. C at P00229-31.) With this proposal, Pinnacle management sought the approval of Pinnacle's Board "for management to enter into an arrangement with Hamilton Health Center to provide for the consolidation of the respective OB/GYN clinics." (Doc. 104, Ex. C at P00230.) After review of management's proposal, the Pinnacle Board approved the proposal and authorized management to present it to Hamilton. (Doc. 104, Ex. C at P03188-89.)

On September 24, 2002, Dr. Longenderfer presented an overall concept of the potential combination to the Hamilton Board. When asked his view of the most difficult aspect of the transition, Dr. Longenderfer responded that cultural issues would be the most difficult, as it was with the merger of Harrisburg and Polyclinic Hospitals. After Dr. Longenderfer left the Hamilton Board meeting, questions persisted, particularly regarding "concerns about culture and how the physicians could cause the merger between our systems to fail if they were not supportive of the arrangement." (Doc. 113, Ex. 27 at HAM0059-60; Doc. 103 ¶ 273; Doc. 113 ¶ 273.) The collective reaction of the Hamilton Board can be described, at best, as "lukewarm." Ultimately, the Board "voted to authorize staff to continue with discussions with Pinnacle but not to make any commitments." (Doc. 113, Ex. 27 at HAM0060.)

Not surprisingly, there were no further negotiations between Pinnacle and Hamilton regarding the proposed combination of their OB/GYN services. Hamilton chose to discontinue discussions because it was concerned about the financial risks involved and the potentially insurmountable "cultural" conflicts between Hamilton and the WOHC.*fn6 (Doc. 106, Ex. III at 51-52, 100.) During the preliminary negotiations, the parties did not initiate the lengthy process of securing necessary government regulatory approvals. (Doc. 103 ¶ 278; Doc. 113 ¶ 278.)

If the proposed combination had occurred, it would have been Hamilton's operation, not Pinnacle's. Therefore, Hamilton would have been responsible for the staffing decisions of the combined OB/GYN clinic. (Doc. 106, Ex. III at 54, 161; Doc. 106, Ex. MMM at 11; Doc. 106, Ex. FFF at 67.) According to Hamilton's CEO, discussions regarding the selection of staff physicians for the combined clinic had not occurred. (Doc. 106, Ex. III at 54.) Discussions about personnel for the combined operation were limited to staffing patterns, e.g., suggested and budgeted numbers for various positions. (Doc. 113, Ex. 42.) For example, shortly before the execution of the confidentiality agreement between Pinnacle and Hamilton in February 2002, Dr. Kellis met with clinical staff from Hamilton to discuss and to develop possible staffing structures for the combined clinic. (Doc. 113, Ex. 29 at P03039.)

C. The Review of Dr. Bakare's Standard of Care and Subsequent Corrective Action

The QA Committee is a committee of the Department of Obstetrics and Gynecology that reviews and analyzes quality of care issues to ensure consistent application of appropriate standards of patient care. (Doc. 113, Ex. 13 at 14; Doc. 106, Ex. NNN ¶ 8.) The function of the QA Committee is "to identify a threshold below which most physicians would agree that the care is substandard and above which there may be several levels of acceptable care." (Doc. 104, Ex. E at P03698.) Patient care issues may be referred to the QA Committee by any person in the Pinnacle Health System. (Doc. 106, Ex. WW at 16.) After committee members review patient charts on their own, the QA Committee discusses the cases to determine whether further review is necessary. If so, the QA Committee sends a letter to the doctor involved in the case, requesting a detailed explanation. After receiving a response from the doctor, which normally includes an explanation beyond that contained in the chart, the QA Committee will assign points to the extent warranted. The assessed points reflect concerns with patient care and their accumulation can subject a physician to chart review and referral to the credentialing committee or MEC. Once points are assigned to a case, the Chairman of the QA Committee signs a form and sends the case to the Chairman of the OB/GYN Department-in this case Dr. Bronitsky-for his review and approval. If the Chairman is satisfied with the review process, he will also sign the form and send a letter to the doctor regarding the QA Committee's assessment of points. (Doc. 106, Ex. NNN ¶ 8; Doc. 106, Ex. VV at 17; Doc. 104, Ex. E at P02748, P02761.)

On April 1, 2002, Dr. Bronitsky sent a letter to the President of the Medical Staff at Pinnacle Health System requesting his guidance and the guidance of MEC because the QA Committee had identified Dr. Bakare as "falling outside the standard of care" for the OB/GYN Department. (Doc. 105, Ex. L.) On April 23, 2002, MEC formally initiated an investigation into the quality of care issues involving Dr. Bakare, as identified by the QA Committee.*fn7 MEC directed its attorney to notify Drs. Bakare and Bronitsky that it would address this matter during its May 2002 session and that they were invited to attend, make presentations, and respond to questions. (Doc. 104, Ex. D at P00070, P00786.) MEC's attorney wrote to Drs. Bronitsky and Kellis (Doc. 105, Ex. M) and to Dr. Bakare (Doc. 105, Ex. N)*fn8 informing them of the pending matter before MEC regarding the request for corrective action against Dr. Bakare.

That an obstetrician/gynecologist outside of the Medical Staff be retained to further evaluate the cases in which it is alleged that [Dr. Bakare] exercised poor clinical judgment resulting in the provision of medical care below accepted standards of medical practice in violation of Article IX, Section 1 of the Bylaws.

Upon receipt of the report from the obstetrician/gynecologist in accordance with [the item] above, the Committee will determine whether and to what extent corrective action will be recommended. (Doc. 104, Ex. D at P00071.)

Dr. Kellis contacted the American College of Obstetrics and Gynecology ("ACOG") for an expert recommendation. In July 2002, Dr. Kellis sent the ACOG-recommended expert a letter, stating, in part:

I appreciate your willingness to review the accompanying charts. As you are aware, the Medical Staff Executive Committee at Pinnacle Health has become aware of quality of care issues with regards to Dr. Bakare, the physician responsible for the management of these patients. The Medical Staff would appreciate your assessment in each of these cases, of whether or not you believe the care rendered was outside the acceptable standards, and if so, some idea of the seriousness of the "deficiency."

The following is a brief synopsis of the patient records that are of concern. This is provided, not as an attempt to influence your conclusions about these cases, but rather as a guide to assist you in your review of the records.

(Doc. 105, Ex. O at P00757; see also Doc. 105, Ex. O at P00948-P00949; Doc. 106, Ex. OOO ¶¶ 5-6.) Also in July 2002, Dr. Kellis sent a letter by certified mail to Dr. Bakare. The letter provided summaries of the ten cases being reviewed by the expert and invited Dr. Bakare to submit, by August 20, 2002, a written explanation of the care or a rebuttal to the concern expressed for each case. The letter also revealed that MEC would discuss the quality of care concerns at the August 27, 2002 meeting with the information obtained from the expert. (Doc. 105, Ex. P at P00754-56.) Dr. Bakare did not receive this letter-he did not accept delivery of the certified mail-but testified at his deposition that even if he had, he would not have responded because Dr. Kellis "had no place for sending me that list." (Doc. 106, Ex. TT at 191.) In a letter dated August 12, 2002, the expert retained by MEC analyzed each of the ten cases forwarded to him by Dr. Kellis and concluded that "beyond a reasonable degree of medical certainty [Dr. Bakare's] medical management falls below the established standards." (Doc. 105, Ex. O at P00748-52.)

On August 27, 2002, Dr. Kellis presented the cases at issue to MEC.*fn10

(Doc. 103 ¶ 156; Doc. 113 ¶ 156.) To facilitate MEC's review of the matter, Dr. Kellis prepared a report which included, inter alia, an outline of the cases with responses from Dr. Bakare, if any, and the expert's analysis. In his report, Dr. Kellis stated: "The Medical Staff Executive Committee is requested to recommend termination of Dr. Bakare's medical staff privileges and membership to the Pinnacle Health Board of Directors."*fn11 (Doc. 113, Ex. 32.) During the meeting, MEC also heard from a member of the QA Committee, who was invited to the meeting to answer any additional questions. (Doc. 104, Ex. D at P00072.)

After hearing the testimony and deliberating for approximately three hours (Doc. 103 ¶ 159; Doc. 113 ¶ 159), MEC determined that Dr. Bakare "failed to meet acceptable standards of clinical practice for an obstetrician-gynecologist." (Doc. 104, Ex. D at P00072.) MEC also voted to recommend to the Board of Directors that Dr. Bakare's appointment to the medical staff be revoked. (Doc. 104, Ex. D at P00072.) Finally, MEC voted to "immediately impose upon [Dr. Bakare] a precautionary suspension of all of his clinical privileges to protect the lives of patients and to reduce the substantial likelihood of immediate threat to the health and safety of patients in the Hospitals."*fn12 (Doc. 104, Ex. D at P00072.) MEC's determination and votes were unanimous, with the exception of one abstention.*fn13

(Doc. 104, Ex. D at P00072.)

On August 28, 2002, MEC's attorney gave Dr. Bakare notice of the adverse action taken by MEC. (Doc. 103 ¶ 164; Doc. 113 ¶ 164; Doc. 105, Ex. Q at P00795.) The notice informed Dr. Bakare of the precautionary suspension and recommendation to the Board of Directors as well as MEC's reasons for the corrective action. It informed Dr. Bakare that he had thirty days from receipt of the letter to request a hearing; it also provided him with a summary of his hearing rights. (Doc. 105, Ex. Q at P00796-99.)

On September 4, 2002, MEC met with Dr. Bakare and his counsel to review the precautionary suspension. During the meeting, Dr. Bakare presented additional information about his quality of care and the ten cases at issue. He also responded to questions posed by members of MEC. Immediately thereafter, MEC modified the terms of Dr. Bakare's precautionary suspension by allowing Dr. Bakare to exercise privileges under certain conditions. (Doc. 104, Ex. D at P00074-76; see also Doc. 103 ¶ 166; Doc. 113 ¶ 166; Doc. 105, Ex. R at P00802-03.)

On September 5, 2002, Dr. Bakare's attorney requested that the Fair Hearing Committee ("FHC")*fn14 review the corrective action taken by MEC. (Doc. 103 ¶ 175; Doc. 113 ¶ 175; Doc. 105, Ex. U.) FHC met fifteen times between November 5, 2002 and February 13, 2003, absorbed over thirty hours of testimony, and deliberated for approximately four and a half hours. Ultimately, FHC rejected MEC's determination that Dr. Bakare failed to meet acceptable standards of clinical practice. FHC recommended to MEC that it modify its adverse recommendation to Board of Directors to provide that Dr. Bakare must, as a condition to his continued membership on the medical staff, abide by certain conditions regarding response time for written inquiries and documentation requirements. (Doc. 34, Ex. 12.) FHC succinctly observed: "because of flaws in the process and an insufficient attention to detail, much of the information presented to the MEC was misinformation. Simply put, too many 'facts' were wrong."*fn15 (Doc. 34, Ex. 12.) However, FHC did "not believe that the MEC acted in bad faith or with malice toward Dr. Bakare during this process. In fact, based on the information presented to it, the [FHC] believe[d] that the MEC acted reasonably and responsibly." (Doc. 34, Ex. 12.)

On March 18, 2003, MEC reviewed FHC's report and modified its original determinations and adverse recommendations accordingly. (Doc. 104, Ex. D at P00704-15.) On March 25, 2003, MEC sent its modified determinations and recommendations to the Board of Directors of Pinnacle Health Hospitals and vacated Dr. Bakare's suspension. (Doc. 104, Ex. D at P00716-18.) On May 19, 2003, the Board of Directors adopted MEC's modified determinations and recommendations. (Doc. 34, Ex. 18.)

D. Facts Pertinent to Claims Arising from or Related to the Corrective Action

1. Disclosures of Dr. Roger Longenderfer and Hamilton

Shortly after the imposition of Dr. Bakare's precautionary suspension, Dr. Longenderfer communicated with Hamilton's CEO. He informed her that Dr. Bakare could no longer supervise Hamilton's midwife and that Hamilton would need to appoint a new supervisor.*fn16 (Doc. 106, Ex. III at 124.) Dr. Longenderfer did not elaborate or provide any details about Dr. Bakare's suspension of privileges to Hamilton's CEO. (Doc. 106, Ex. III at 124-25.)

As mentioned on Friday, August 30, 2002, I very much regret learning Harrisburg Hospital has taken action to restrict or ...

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